JAGARLAMUDI SURYA PRASAD Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) Criminal Petition No. 389 of 1991 is a petition under S. 482, Cri.P.C. to quash the proceedings in C.C. No. 424 of 1989 on the file of the II Additional J.F.C.M., Kakinada, Criminal M.P. No. 1066/91 is an application by the de facto-complainant who originally gave a complaint to the Magistrate regarding the offences for which charge-sheet was filed in C.C. No. 424/89, Criminal M.P. No. 505/91 is an application for stay of further proceedings in C.C. No. 424/89 pending Cri.P. No. 389/91. That petition was ordered and stay of further proceedings was granted on 11-3-91. To vacate the stay granted Cri.M.P. No. 1067/91 is filed.

(2.) The three accused in C.C. No. 424/89 have come up with this application to quash the proceedings in C.C. No. 424/89. Sri K. Harinath, the learned counsel appearing for the petitioners, contends that the cheque, regarding dishonour of which the case has come up, is not a cheque issued on behalf of the company or P-1 in his capacity as Managing Director of the company. It is claimed that the cheque is a forged cheque. In the alternative it is claimed that as the cheque is a cheque issued by the petitioner No. 1 against his own personal account, when the liability to pay the amount is that of the company, no offence under S. 138 of the Negotiable Instruments Act is made out against the accused persons. He further contends that the ingredients of S. 138 are not satisfied. The charge sheet does not allege that the cheque was issued on behalf of the complainant. There is no proof of notices alleged to have been issued being received by the petitioners. He claims that the ingredients of S. 138 of the Negotiable Instruments Act as well as the ingredients of the offence under S. 420, I.P.C. are not satisfied and hence the prosecution should be quashed. He also contends that Cri.M.P. No. 1066 of 1991 is not maintainable. As the charge-sheet was filed in this case, the de facto-complainant can at best only seek a right to assist the Public Prosecutor and he cannot claim a right to be impleaded as a party. There is no provision in the Cri.P.C. for impleading the de facto-complainant as a party.

(3.) On behalf of the de facto-complainant who is the petitioner in Cri.M.P. Nos. 1066 of 1991 and 1067/91, Mr. T. Gopala Krishna, contends that he is fully alive to the limitation prescribed under S. 301, Cr.P.C. He claims that according to S. 138 and S. 142 of the Negotiable Instrument Act, there is no provisions for referring a complaint filed by the payee of the cheque to the police for purposes of investigation and it is a bounden duty of the Magistrate to take cognizance of the complaint if the complaint satisfies the requirements of S. 138 and Ss. 141 and 142 of the Negotiable Instruments Act. In such circumstances, the de facto-complainant is the person who is certainly entitled to prosecute the case. Even otherwise, the de facto-complainant does have the right to assist the prosecution and he has also the right to submit written arguments after the evidence is closed in a case. Hence in this particular proceedings, the papers filed by him in Cri.M.P. No. 1066 of 1991 may be treated as the written arguments to supplement the arguments of the Public Prosecutor. Subject to the objections of the petitioners advocate, he argued both on merits and on legality. He contends that all questions regarding the cheque being forged, the cheque being issued on the personal account of the petitioner No. 1 and not on the account of the company and the factum of issuing of notices and refusal of the notices are all questions of fact which can only be decided after evidence is recorded. In a proceedings under S. 482, Cr.P.C. it is not open to this Court to go into the questions of fact. The complaint has been given in a very elaborate manner by the complainant. Without jurisdiction and without any legal necessity, the Magistrate referred the matter to the police for purposes of investigation treating it as an ordinary private complaint. The mere fact that while drafting the charge-sheet the police authorities have omitted certain details does not take away the rights which are available to the de facto complainant in this proceedings. He contends that in this case, the cheque was issued on 14-6-1989 for an amount of Rs. 2,85,700.00. It was dishonoured on 16-6-1989. On 19-6-1989, the complainant gave notices by registered post as well as under certificate of posting. The notices were returned and the petitioners evaded receiving the notices. That is sufficient compliance with clause (c) of proviso to S. 138 of the Negotiable Instruments Act. The general presumption that a person who refused to receive a notice or returns a notice is deemed to be served with that notice would apply in this case also. The complaint itself was filed in the Court on 7-7-1989 i.e. within the period of one month from the date on which the cause of action arose under clause (c) of the proviso to S. 138 of the Negotiable Instruments Act. The proceedings cannot be quashed on any ground. The questions of fact are all matters which will have to be determined after the evidence is recorded. The present petition Cri.P. No. 389/91 is not maintainable and it is devoid of merits.